On November 9, 2012, the United States District Court for the Northern District of California, dubbed “The Food Court” by this blog, struck again – and this time, not in favor of food manufacturers. In Khasin v. The Hershey Company, the federal district court rejected preemption of a nutrient content claims-based class action.

In this putative class action, Plaintiff contends that The Hershey Company made unlawful nutrient content claims on the label of its food products. In moving to dismiss the class action, Hershey made several arguments, including preemption, addressed below.

First, Hershey maintained that a private right of action to enforce labeling requirements was barred by the Food, Drug, and Cosmetic Act (“FDCA”). Finding this argument inapposite, the court observed that Plaintiff was not suing to enforce the federal statute, but rather his action was founded on parallel state laws that prescribed labeling requirements similar, if not identical, to the FDCA’s requirements. And, in cases of this kind, courts have refused to find that preemption precludes the private, state-based causes of action because “the state duties in such a case ‘parallel,’ rather than add to, federal requirement.” (citation omitted). In reaching this conclusion, the court found Hershey’s application of Pom Wonderful LLC v. Coca-Cola Co. irrelevant because Plaintiff did not bring a cause of action based on the federal FDCA, but rather state law, unlike the plaintiff in Pom.

Hershey further argued that Congress expressly preempted any state law that imposed nutrition labeling requirements on their packaging that was “not identical” to federal requirements. And since Plaintiff was seeking to impose requirements that were not identical to the language of the FDCA, his claims were preempted. The court rejected this argument, finding that contrary to Hershey’s assertions, complying with the demand requested by Plaintiff’s causes of action would not require Hershey to undertake food labeling or representation different from that required by the FDCA as applicable California state law mirrors FDCA regulations regarding representations made on food labels.

Despite this disappointing ruling for food manufacturers, hope is not lost. Express preemption remains an essential argument for food company defendants in such litigation and though rejected in the Hershey case, not all facts lend themselves to such a gloomy conclusion. Illustrating this point is the case of Young v. Johnson & Johnson, et al., currently on appeal in the Third Circuit (read WLF’s amicus brief in the case here). In that case, a federal judge in the District of New Jersey dismissed a class action on the grounds of, inter alia, express preemption. The court found that in taking issue with several allegedly misleading statements on the label of Benecol, Plaintiff was seeking to impose label requirements different than those required by the FDA. And as such, his claims were expressly preempted.

Although the court’s ruling in Hershey leaves a bitter taste with the food industry, Young should give litigators hope that although they may have lost one battle, the war is certainly not over.

Actually, the war IS over. The processed food industry has lost its ability to lie with impunity about the ingredients in the foods it sells to Americans. Turns out the FDA regulations mean something, after all. Who would have thought it?